ALTERNATIVE DISPUTE RESOLUTION Flashcards
1
Q
What are ADR???
A
- Alternative Dispute Resolution refers to the various METHODS and PROCESSES used to resolve disputes OUTSIDE OF LITIGATION.
- Litigation is typically seem as the very LAST RESOURCE.
- It has been a significant increase in QUASI-JUDICIAL BODIES in recent years.
- The ADR available to the parties seeking for ways to solve their disputes outside of litigation are:
1) Negotiation;
2) Mediation;
3) Conciliation;
4) Arbitration.
2
Q
1) Negotiation:
A
- Negotiation refer to the PROCESS in which the parties involved in a dispute voluntarily decide to ACTIVELY DISCUSS and COMMUNICATE with the aim of reaching a MUTUALLY SATISFACTORY SOLUTION.
- Negotiation can happen with or without legal representation!
- The ADVANTAGES of this process include how flexible, cost effective and confidential it is as well as the fact that it allows the parties to have a high level of control over the procedure.
- The DISADVANTAGES/UNFAVORABLE ASPECTS of it include the RISK of the parties being DISAPPOINTED with the outcome of a negotiation, disclosing information and the deficiencies in communication that may be present.
3
Q
2) Mediation:
A
- Mediation refers to the process of resolving a dispute with the ASSISTANCE OF A NEUTRAL THIRD PARTY.
- CHARLTON v. KENNY = in this case, the parties were about to enter the witness box when the judge suggested they attempt mediation, which both parties agreed to. Later on, owing to the process of mediation, the parties were able to successfully reach a mutually satisfactory and beneficial solution to their dispute without the need for litigation.
- Section 2 of the “MEDIATION ACT 2017” provides that mediation must be…
a) Confidential;
b) Facilitative;
c) Voluntary
… procedure.
4
Q
SECTION 2 OF THE MEDIATION ACT 2027 - CHARACTERISTICS OF THE MEDIATION:
A
- Section 2 of the “Mediation Act 2017” provide that the mediation must be a CONFIDENTIAL, FACILITATIVE and VOLUNTARY procedure.
5
Q
SECTION 7 OF THE MEDIATION ACT 2017 - VITAL INFO REPORT:
A
Section 7 of the “Mediation Act 2017” provides that PRIOR TO THE COMMENCEMENT of the mediation, both the mediator and the parties involved must/shall PREPARE A DOCUMENT containing a couple of vital informations and statements:
- Appointing the proposed me mediator;
- The manner in which the mediation is to be conducted;
- The manner in which the fees and costs of the mediation will be paid;
- The place and time in which the mediation is to be concluded;
- The right of each party to seek legal advice.
6
Q
SECTION 6 OF THE MEDIATION ACT 2017 - VOLUNTARY NATURE.
A
- Section 6 of the “Mediation Act 2017” expressed the voluntary nature of the mediation process.
- The parties involved in a dispute must be willing to have their dispute solved by means of mediation while being fully aware of their right of withdrawal at any time they wish.
- Consent and willingness are requirements in the procedure and must be present at all times.
- The parties must also be communicated of their right to obtain independent for legal advice
7
Q
SECTION 10 OF THE MEDIATION ACT 2017 - CONFIDENTIALITY ASPECT:
A
- Section 10 of the “Mediation Act 2017” provides that ALL COMMUNICATIONS, NOTES and RECORDS relating to the process of mediation MUST BE CONFIDENTIAL and SHALL NOT BE DISCLOSURED.
8
Q
SECTION 8 OF THE MEDIATION ACT 2017 - ROLE OF THE MEDIATOR
A
- Section 8 of the “Mediation Act 2017” states the role of the mediator in the process, which includes communication the parties’ right to seek independent legal advice and to make effective proposals to solve the dispute.
- The mediator must also ACT WITH IMPARTIALITY AT ALL TIMES!!
9
Q
SECTION 14 OF THE MEDIATION ACT 2017 - INFORMATION PROVIDED BY THE SOLICITOR.
A
- Section 14 of the “Mediation Act 2017” establishes that the solicitor must must provide the client with vital information regarding how the process usually occurs, its advantages and possible disadvantages, give the parties advice and the like.
10
Q
SECTION 16 OF THE MEDIATION ACT 2017 - ROLE OF THE COURT.
A
- Section 16 of the “Mediation Act 2017” provides that the court must invite the parties to attempt mediation and provide them with information relating to the benefits of it.
- Charlton v. Kenny!
11
Q
SECTION 17 OF THE MEDIATION ACT 2017 - PREPARATION OF REPORT.
A
- Section 17 of the “Mediation Act 2017” provides that in the event of parties who were advised by the court to attempt mediation but ultimately decide they are not satisfied by it, are entitled to return to the court.
- However, the mediator will be responsible for preparing a formal and well-detailed report detailing the reasons why mediation was not successful and if mediation was successful, then the mediator would be required to provide a report containing all of the vital information regarding to the final solution achieved.
12
Q
3) Conciliation:
A
- Conciliation is quite similar to mediation in which a CONCILIATOR can recommend and suggest a settlement for the parties’ disputes.
13
Q
4) Arbitration:
A
- The process of arbitration involve the parties in a dispute MUTUALLY AND FREELY CONSENT TO PRESENT THEIR CASE TO AN IMPARTIAL THIRD PARTY, known as the arbitrator or arbitral tribunal.
- The arbitrator will then be responsible for issuing a FINAL & BINDING SOLUTION TO THE DISPUTE.
- Arbitration is most commonly observed in COMMERCIAL DISPUTES.
- THE ARBITRATION ACT 2010!!! provides the PROCEDURAL guidelines governing the arbitration process and the issuance of arbitral awards.
- Advantages: fast, confidential, cost effective and LIBERTY OF CHOOSING THE ARBITRATOR.
- Disadvantages: the lack of precedents and the possibility of challenging the arbitral award.
14
Q
LITIGATION?
A
- Described as the “Last Resource”.
- It refers to the formal process which is carried out in public and each the parties have the right to be legally represented.
- A paramount number of factors shall be taken into consideration before litigation:
- strength of time;
- effect on the individual’s reputation
- costs and time
- status of the defendant.
